Comstock v. Georgetown Tp.

• Decision Date: 14 September 1904
• Citation: 100 N.W. 788,137 Mich. 541
• Court: Michigan Supreme Court
• Parties: COMSTOCK v. GEORGETOWN TP.

100 N.W. 788

137 Mich. 541

COMSTOCK v. GEORGETOWN TP.

Supreme Court of Michigan

September 14, 1904

Error to Circuit Court, Ottawa County; Philip Padgham, Judge.

Action by Ardon B. Comstock against the township of Georgetown. Judgment for plaintiff. Defendant brings eror. Reversed.

Walter I. Lillie (Smedley & Corwin, of counsel) for appellant.

Lombard & Hext, for appellee.

HOOKER J.

The plaintiff was injured while driving a traction engine which broke through a bridge which it was the defendant's duty to maintain. The action is based upon alleged negligence of the defendant's officers in allowing certain partially decayed stringers to remain in the bridge. There is some testimony that one or more of the officers had been informed that the stringers were affected to some degree by rot, and the question of notice, as well as the degree of decay, and the propriety of permitting them to remain, were questions for the jury. A verdict being rendered in favor of the plaintiff, the defendant has appealed. Counsel have grouped their numerous assignments of error, and, for convenience the facts pertinent to each question will be stated in connection therewith.

(1) The questions raised under this class of assignments relate to the introduction of testimony as to injuries, and are based upon the claim that the declaration did not warrant proof that plaintiff's hand and arm were injured; that his face was cut; that his mouth 'did not work right,' and could not be controlled, and that his speech was affected and that his chin, lips, and nerves were affected; that numbness of the parts was produced, and a thickening of ligaments of the wrist, affecting the use of the tendons, The declaration, as amended, alleged: 'And he, the said plaintiff, without any fault or negligence on his part, was then and there thrown with great force and violence from and off his seat upon said engine, and upon and against said engine and water-tank wagon and timbers forming said bridge and the said engine, water-tank wagon and timbers, then and there, because of the premises aforesaid, and without any fault or negligence on the part of the said plaintiff, struck, bruised, and wounded the said plaintiff upon and about his face, head, back, shoulders, spine, and body, and by means of the several premises aforesaid the said plaintiff was then and there cut, burned, bruised, hurt, and wounded, and permanently injured about his face, head, back, shoulders, left arm, spine, and body, and on account of which said injuries the said plaintiff became sick, sore, lame, and disordered, and permanently injured in and about his nervous system, face, head, back, neck, shoulders, spine, and body, and has so remained for a long time, to wit, from thence hitherto, during all of which time he has thereby suffered great pain, distress, and mortification, has been from the time of said injury and will continue to be prevented from performing his usual occupation and has been prevented from earning large sums of money, to wit, two dollars per day, from the time of said injury hitherto, and will continue to be so prevented from performing his usual labor and avocation in a large degree, to wit, during the remainder of his natural life, and has, because of the premises aforesaid, been greatly depreciated in his earning capacity and ability to labor, and has heretofore since the injury been confined to the bed for the period of, to wit, three weeks, and entirely unable to earn any sum of money whatever, which said time was worth the sum of two dollars per day, and will hereafter during his natural life suffer great pain, distress, and mortification, and was thereby and will continue to be thereby permanently prevented from carrying on his business of a farmer and thresher, in which, to wit, on the day and year aforesaid, he was engaged in active work, and from which he was making large gains and proceeds, to wit, fifteen hundred dollars ($1,500) per annum, and was by means of the premises also obliged to lay out and pay large sums of money, amounting to, to wit, the sum of five hundred dollars ($500), in and about endeavoring to be healed and cured of his said wounds, injuries, sickness, and disorder, and will continue to be obliged to lay out and pay large sums of money therefor.'

One Dr. Walkley, who never saw the plaintiff until a few days before he was called as a witness, was allowed to testify that he 'made an examination of his physical condition.' Among other things he said: 'He stood right in front of me. I could tell it was swollen by the abrupt raising. It wasn't symmetrical, like the other shoulder. I examined the spine, and found just one tender point--the seventh cervical vertebra. Q. How could you tell that was sore and tender? A. Well, he flinched when I was examining it, and he didn't flinch at any of the others, and he said it was sore. Mr. Smedley: I object to what he said, and move to strike it out. The Court: Strike it out. Mr. Smedley: I move that the other be stricken out--that he flinched. He went to this doctor for the purpose of using him as a witness, and it is incompetent for the doctor to testify to anything the plaintiff did--if he said anything or if he flinched. He must testify to things he knows of his own knowledge. He says he learned it was tender because the man flinched, and it is incompetent. The Court: I will let it stand. Mr. Smedley: Note an exception. Q. I will ask you, doctor, whether, from your observation of the man, and the nature of the examination you made--whether, in your judgment, he was feigning that tenderness, or whether it was real? Mr. Smedley: I object to that as incompetent. The Court: He may answer. Mr. Smedley: Note an exception. A. I think it was real, for he flinched so very prompt. Q. It came on time? A. It came on time, and he didn't know where I was going to touch him next.' He was allowed to testify that a week before the trial he made an examination of him, and gave him some medicine; that 'he had a slight fever that particular morning, and the pulse slightly accelerated'; and that 'he found him tender through the neck and shoulder, and apparently suffering a great deal of pain.' This being objected to, again counsel for plaintiff said: 'Q. I will modify the form of the question, and ask you---- I think you stated a moment ago you found tender spots. Could you tell from his actions and appearance whether or not your examination of those parts produced pain? Mr. Smedley: I object to that as incompetent. The Court: I think he may answer. Mr. Smedley: Note an exception. A. They did---- The examination did produce pain. Q. How could you tell that, doctor? A. A man naturally would---- Mr. Smedley: I object to what a man naturally would do. Let him state what he found and what he saw. A. Well, I saw, by pressure and percussion over the neck, back, and shoulder, that the man flinched, and gave signs to me that he was sore and suffering pain. Mr. Smedley: I object to that, and move to strike it out--that he gave signs to him that he was sore and suffering pain. Mr. Lombard: I will ask what the doctor means by that. The Court: Let it stand at present. Go on. Mr. Smedley: Note an exception. Q. In your judgment, doctor, was he actually sore, or feigning? Mr. Smedley: I object to that as incompetent. Let him state what he saw. The Court: He may answer that. Mr. Smedley: Note an exception. A. It appeared to me he was sore, and not feigning his soreness. Q. Did you treat him that morning? A. I did.'

The trial was between four and five months after the accident.

(2) The assignments in the second class relate to testimony given by physicians against defendant's objection. One Dr. Wedgewood was called to treat the plaintiff at the time of the accident and gave testimony regarding his condition and treatment immediately after the accident, and until his convalescence.

(3) Error is assigned to the exclusion of the answer to questions put to defendant's witnesses--e. g.: 'Was that bridge reasonably safe and fit for travel by the public?' And: 'Q. Have you had any experience in traveling with threshing outfits? A. I have not. Q. Have you had any experience in knowing and testing the strength of timber? A. Not to any great extent. Q. I will ask you whether, in your opinion, that bridge, as you saw it the next day after the accident, would have been strong enough to stand the public travel of any vehicles that was used in 1895? Mr. Lombard: Objected to as incompetent. That is a conclusion. The Court: That would be calling for a conclusion, purely. Mr. Smedley: Note an exception.'

(4) Defendant sought to show that it was the general practice by those having traction engines not to take tanks upon the bridges with the engines, in support of the claim that plaintiff was negligent in putting the tank on the bridge with the engine, thereby increasing the load upon the bridge some 2,000 or 3,000 pounds. This was excluded.

(5) It appeared by the testimony that the engine was heavier than any other in use in that neighborhood, and that the tank was unusually heavy. It appeared that, before reaching the bridge, defendant's highway commissioner had given plaintiff a warning about this bridge, and advised the use of planks if he should attempt to cross it. The plaintiff testified: 'There were four run plank, laid end to end. I felt it when the engine went down. It went down all at once. I didn't have time to jump and get off. I didn't hear the timbers crack. I never examined the bridge after this went down. I helped place the run plank. I can't tell from the picture whether the east run plank is under the wheel or not. The west one is.' Fred Kort, owner of the engine testified: 'After the bridge broke, the wheels on the west side of...